Citation Nr: 0833527
Decision Date: 09/30/08 Archive Date: 10/07/08
DOCKET NO. 07-06 134 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUE
Entitlement to an initial rating higher than 20 percent for
spondylolisthesis at L5-S1.
REPRESENTATION
Veteran represented by: Nevada Office of Veterans'
Services
ATTORNEY FOR THE BOARD
Motrya Mac, Associate Counsel
INTRODUCTION
The veteran, who is the appellant, served on active duty from
January 1969 to October 1970.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision, dated in September 2005, of a
Department of Veterans Affairs (VA) Regional Office (RO).
FINDING OF FACT
Spondylolisthesis at L5-S1 is manifested by flexion limited
to 40 degrees without abnormal curvature of the spine or loss
of lateral motion; neurological manifestations, severe
intervertebral disc syndrome or incapacitating episodes are
not shown.
CONCLUSION OF LAW
The criteria for a rating higher than 20 percent for
spondylolisthesis at L5-S1 have not been met. 38 U.S.C.A. §§
1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a,
Diagnostic Codes 5293 (effective prior and on September 23,
2002), 5292, 5295, (2003), Diagnostic Codes 5239-5243 (2007).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A
(West 2002 & Supp. 2008), and implemented in part at
38 C.F.R. § 3.159 (2007), amended VA's duties to notify and
to assist a claimant in developing information and evidence
necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence VA
will obtain, and which information and evidence the claimant
is expected to provide. Under 38 C.F.R. § 3.159, VA must
request that the claimant provide any evidence in his
possession that pertains to a claim.
Also, the VCAA notice requirements apply to all five elements
of a service connection claim. The five elements are: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In claims for increase, the VCAA notice requirements are the
type of evidence needed to substantiate the claims, namely,
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life.
Also, if the Diagnostic Code under which the claimant is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the VA must provide at least
general notice of that requirement to the claimant. Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO provided pre-adjudication, content-complying VCAA
notice by letter, dated in April 2004, on the underlying
claim of service connection. Where, as here, service
connection has been granted and an initial rating has been
assigned, the claim of service connection have been more than
substantiated, the claim has been proven, thereby rendering
38 U.S.C.A. §5103(a) notice no longer required because the
purpose that the notice was intended to serve has been
fulfilled. Once the claim of service connection has been
substantiated, the filing of a notice of disagreement with
the RO's decision, rating the disabilities, does not trigger
additional 38 U.S.C.A. § 5103(a) notice. Therefore, further
VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is
no longer applicable in the claims for initial higher
ratings. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson,
21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 21 Vet.
App. 128 (2008).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claim. The RO has afforded the veteran VA
examinations in May 2004, April 2006 and September 2007.
As the veteran has not identified any additional evidence
pertinent to the claim and as there are no additional records
to obtain, the Board concludes that no further assistance to
the veteran in developing the facts pertinent to the claim is
required to comply with the duty to assist.
REASONS AND BASES FOR FINDING AND CONCLUSION
General Rating Policy
Disability ratings are determined by the application of VA's
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R.
Part 4.
The percentage ratings contained in the Rating Schedule
represent, as far as can be practicably determined, the
average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
The Board will consider whether separate ratings may be
assigned for separate periods of time based on facts found, a
practice known as "staged ratings," whether it is an
initial rating case or not. Fenderson v. West, 12 Vet.
App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505
(2007).
When rating a disability of the musculoskeletal system,
functional loss due pain, weakened movement, and fatigability
are factors to be considered. 38 C.F.R. §§4.40, 4.45; DeLuca
v. Brown, 8 Vet. App. 202 (1995). In any form of arthritis,
painful motion is also a factor. 38 C.F.R. § 4.59.
For VA rating purposes, normal ranges of motion of the
thoracolumbar spine are forward flexion to 90 degrees,
extension to 30 degrees, lateral flexion, right and left, 30
degrees, and rotation, right and left, 30 degrees. The
normal combined range of motion of the thoracolumbar spine is
240 degrees. 38 C.F.R. § 4.71a, Plate V.
Spondylolisthesis at L5-S1 is currently rated 20 percent
disabling under Diagnostic Code 5239 (spondylolisthesis or
segmental instability).
Since the veteran filed his claim, the criteria for
evaluating a disability of the spine have changed.
The criteria for degenerative disc disease under Diagnostic
Code 5293 (hereinafter the old criteria) were revised on
September 23, 2002, (hereinafter the interim criteria). On
September 26, 2003, the interim criteria were revised, which
included the renumbering of Diagnostic Code 5293 to
Diagnostic Code 5243 (hereinafter the current criteria).
Under the old criteria, the criteria for the next higher
rating, 40 percent, were severe degenerative disc disease
with recurring attacks with intermittent relief. 38 C.F.R.
§ 4.71a, Diagnostic Code (DC) 5293.
Under the interim criteria, degenerative disc disease could
be rated by combining separate ratings for chronic neurologic
and orthopedic manifestations, or rated on the basis of the
total duration of incapacitating episodes. The criteria for
the next higher rating, 40 percent, based on incapacitating
episodes, are incapacitating episodes having a total duration
of at least 4 but less than 6 weeks during the past 12
months. 38 C.F.R. § 4.71a, DC 5293.
An incapacitating episode was a period of acute signs and
symptoms that required bed rest prescribed by a physician and
treatment by a physician.
Under the current criteria, degenerative disc disease is
rated on the basis of the total duration of incapacitating
episodes or under the General Rating Formula for limitation
of motion and for objective neurologic abnormalities.
Under the General Rating Formula, , the criterion for the
next higher rating, 40 percent, based on limitation of motion
of the lumbar spine, is flexion to 30 degrees or less. Under
the General Rating Formula, objective neurologic
abnormalities are separately rated under the appropriate
Diagnostic Code.
Also applicable is Diagnostic Code 5292 for limitation of
motion of the lumbar spine. Under the old Diagnostic Code
5292, the criterion for the next higher rating, 40 percent,
was severe limitation of motion (old criteria).
Also applicable is the criteria for lumbosacral strain, which
were also revised as of September 2003. Under the old
Diagnostic Code 5295, lumbosacral strain, in effect prior to
September 2003, the criteria for the next higher rating, 40
percent, were severe listing of the whole spine to opposite
side, positive Goldthwaite's sign, marked limitation of
forward bending in the standing position, loss of lateral
motion with osteo-arthritic changes, or narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion.
Under the current criteria, effective from September 2003,
Diagnostic Code 5292 was renumbered and rated by analogy to
Diagnostic Code 5242, and Diagnostic Code 5295 is now
Diagnostic Code 5237. The criteria are the same for either
limitation of motion, Diagnostic Code 5242, or lumbosacral
strain, Diagnostic Code 5237, under the General Rating
Formula.
Under the General Rating Formula, the criterion for the next
higher rating, 40 percent, based on either limitation of
motion, DC 5242, or lumbosacral strain, DC 5237, is flexion
of the lumbar spine to 30 degrees or less.
Factual Background
VA records show that from December 1999 to November 2007 the
veteran seen on multiple occasions for low back pain and
spondylolisthesis. In August 2006, x-rays showed mild to
moderate degenerative disc disease and osteoarthritis.
Private records show that from July 1998 to April 2007 the
veteran was treated for his low back disability. In October
2005, the veteran's private chiropractor indicated his low
back disability was aggravated or exacerbated with any type
of activity and recommended he be placed on permanent light
duty.
On VA examination in May 2004, the veteran complained of
pain, stiffness and weakness in his lower back. It was noted
that after service the veteran had worked as a laborer. He
reported that in 1978 he experienced low back pain after
lifting at work, that in the 1990s he was in a couple of
vehicular accidents, and that his employment after service
included extensive lifting. The veteran denied radiating
pain. He indicated he had occasional flare-ups and the
precipitating factors were sudden jolts and improper lifting.
The veteran indicated that due to the pain he had to take
time off from work or go on light duty.
Physical examination showed that flexion was to 60 degrees,
extension was to 10 degrees, left and right lateral flexion
was to 10 degrees, left lateral rotation was to 30 degrees
and right lateral rotation was to 35 degrees. The examiner
noted there was no pain with range of motion. The examiner
indicated that following repetitive use or flare-ups the
veteran would be limited due to pain and fatigue with lack of
endurance by 25 percent to 30 percent of normal function with
mild loss of mobility. There was no objective evidence of
painful motion, spasm, weakness and tenderness. The veteran
had a slight forward flexed posture. Neurologic examination
was normal. The diagnosis was spondylolisthesis L5 on S1.
Accompanying x-rays show prominent anterior spondylolisthesis
of L5 relative to S1.
On VA examination in April 2006, the veteran complained of
throbbing, constant and nagging back pain in the lumbar area.
There was no radiating pain. The veteran was seeing a
chiropractor regularly for his back pain. The veteran had
flare-ups when walking, bending or sitting for prolonged
periods. The veteran reported he was fired from his job at
the Water District due to his low back pain.
Physical examination shows there were no abnormal
deformities. Forward flexion was about 60 degrees, extension
was to 20 degrees, left and right lateral flexion was to 30
degrees. Left and right lateral rotation was about 30
degrees. The veteran had pain on forward flexion causing a
loss of 20 degrees of motion. This was limited by fatigue
and pain following repetitive use. This pain and fatigue can
cause major functional impact.
The veteran also had positive pain on lumbar extension, but
he maintained 20 degrees range of motion. The lumbar
extension was limited because of pain following repetitive
use and the pain caused some minor functional impact. There
was pain on the left and right lateral flexion and left and
right lateral rotation with a 10 degrees in range of motion.
The left and right lateral flexion and rotation were limited
by pain following repetitive use. The pain was causing minor
functional impact.
Neurological examination show the veteran had intact
sensation on his lower extremities, he had intact pinprick
sensation and he had good motor tone on both lower
extremities.
Accompanying x-rays show grade II-III spondylolisthesis at
L5-S1 area. The diagnosis was low back pain due to
spondylolisthesis grade II-III. The examiner noted that due
to the frequency of the veteran's back pain, he will be
having additional decrease of about 10-20 degrees in his
level of activity and in range of motion.
Records of Social Security Administration show that on
private evaluation in August 2006, the veteran had 70 degrees
of flexion and 30 degrees of right and lateral flexion.
Records from the veteran's private chiropractor show that in
February 2007 the veteran had 48 degrees of flexion,
extension was 18 degrees, right lateral flexion was 9
degrees, left lateral flexion was 18 degrees, right rotation
was 6 degrees and left rotation was 8 degrees.
On VA examination in September 2007, the veteran complained
of low back stiffness, weakness and pain, which did not
radiate. He reported seeing a chiropractor two to three
times per week and used a vibrator for his back pain.
Physical examination shows that curvature of the spine was
slightly bent over upon walking and symmetry in appearance
was slightly awkward. Forward flexion was 70 degrees, pain
began at 50 degrees and was relieved at 30 degrees. He had
some pain, fatigue, weakness and lack of endurance following
repetitive use five times in flexion, which had a major
functional impact, however there was no loss in degrees.
Extension was 30 degrees, left and right lateral flexion and
left and right lateral rotation were all 30 degrees. There
was no objective evidence of painful motion and there was no
spasm. There was no postural abnormality, fixed deformities,
ankylosis or abnormalities of the muscles of the back.
Neurologic examination was normal. Accompanying x-rays did
not show degenerative disc disease.
The diagnoses were transitional vertebra L5; spondylosis of
the L5 with grade 2 anterior listhesis at L5-S1 and chronic
lumbosacral ligamentous strain.
Analysis
To warrant a rating higher than 20 percent for degenerative
disc disease of the lumbar spine under the old criteria,
Diagnostic Code 5293, the veteran would have to have severe
degenerative disc disease with recurring attacks with
intermittent relief.
The veteran has complained of pain on VA examinations. On VA
examination in May 2004, the veteran denied radiating pain.
There was no objective evidence of painful motion, spasm,
weakness and tenderness. Neurologic examination was normal.
On VA examination in April 2006, the veteran complained of
throbbing constant, nagging lower back pain with flare-ups.
There was no radiating back pain. There were no abnormal
deformities. Neurological examination was normal.
VA x-rays in August 2006 show mild to moderate degenerative
disc disease.
On VA examination in September 2007, the veteran continued to
complain of low back pain which did not radiate. Curvature
of the spine was slightly bent over upon walking. There were
no spasms, postural abnormality, fixed deformities, ankylosis
or abnormalities of muscles of the back. Neurological
examination was normal.
The above findings on the VA examinations do not more nearly
approximate or equate to severe symptoms of recurring attacks
compatible with sciatic neuropathy, such as demonstrable
muscle spasm or other neurological findings appropriate to
the site of the disc disease. Accordingly, without
documentation of such recurring attacks, the criteria for the
next higher rating under the old Diagnostic Code 5293 are not
met.
To warrant a rating higher than 20 percent under the old
criteria for limitation of motion of the lumbar spine,
Diagnostic Code 5292, the veteran would have to have severe
limitation of motion.
On VA examination in May 2004, flexion was 60 degrees,
extension was 10 degrees, left and right lateral flexion was
10 degrees, left lateral rotation was 30 degrees and right
lateral rotation was 35 degrees. The examiner noted there
was no pain with range of motion. The examiner indicated
that following repetitive use (or flare-ups) the veteran
would be limited due to pain and fatigue with lack of
endurance. He would be limited by 25 percent to 30 percent
of normal function with mild loss of mobility.
On VA examination in April 2006, forward flexion was about 60
degrees, extension was 20 degrees, left and right lateral
flexion was 30 degrees. Left and right lateral rotation was
about 30 degrees. The veteran had pain on forward flexion
causing a loss of 20 degrees of motion. This was limited by
fatigue and pain following repetitive use. The veteran had
pain on the left and right lateral flexion and left and right
lateral rotation causing a loss of 10 degrees in range of
motion. The left and right lateral flexion and rotation were
limited by pain following repetitive use. The pain was
causing minor functional impact.
Records of the Social Security Administration showed that on
private evaluation in August 2006, the veteran had 70 degrees
of flexion and 30 degrees of right and lateral flexion.
Records from the veteran's private chiropractor show that in
February 2007 the veteran had 48 degrees of flexion,
extension was 18 degrees, right lateral flexion was 9
degrees, left lateral flexion was 18 degrees, right rotation
was 6 degrees and left rotation was 8 degrees.
On VA examination in September 2007, forward flexion was 70
degrees, pain began at 50 degrees and was relieved at 30
degrees. The veteran had positive DeLuca. He had some pain,
fatigue, weakness and lack of endurance following repetitive
use five times in flexion, which had a major functional
impact, however there was no loss in degrees. Extension was
30 degrees, left and right lateral flexion and left and right
lateral rotation were all 30 degrees.
There is clearly limited motion, particularly with extension
and left and right lateral flexion and rotation as evidenced
in May 2004 and February 2007. Nevertheless when considering
the totality of the evidence especially with range of motion
on forward flexion, the findings do not more nearly
approximate or equate to severe limitation of motion of the
lumbar spine, considering functional loss due to pain and
painful movement. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v.
Brown, 8 Vet. App. 202 (1995).
To warrant a rating higher than 20 percent under the old
criteria for lumbosacral strain, DC 5295, the veteran would
have to have severe lumbosacral strain. The record shows
that listing of the spine to the opposite side, a positive
Goldthwaite's sign, marked limitation of forward bending in
the standing position, loss of lateral motion with osteo-
arthritic changes, or abnormal mobility on forced motion are
not demonstrated. Accordingly, the reported findings do not
more nearly approximate or equate to severe impairment, the
criteria for the next higher rating under the old DC 5295.
As no incapacitating episodes or neurological abnormalities
were documented, the criteria for the next higher rating
under the interim Diagnostic Code 5293 or current Diagnostic
Code 5243 have not been met.
For the current criteria for orthopedic manifestations under
the new General Rating Formula, considering pain and
functional loss due to pain, flexion is in the range of 40 to
70 degrees with pain, which does not more nearly approximate
or equate to limitation of flexion of the lumbar spine to 30
degrees or less, considering 38 C.F.R. §§ 4.40, 4.45, and
4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).
For the above reasons, the preponderance of the evidence is
against the claim for a rating higher than 20 percent for
spondylolisthesis at L5-S1 under the old, interim, and
current criteria, applying 38 C.F.R. §§ 4.40, 4.45, and 4.59.
For these reasons, the preponderance of the evidence is
against the claim for a higher rating, and the benefit-of-
the-doubt standard of proof does not apply. 38 U.S.C.A. §
5107(b).
Extraschedular Rating
Where the schedular rating is found to be inadequate, the
claim may be referred to the VA Director of Compensation and
Pension Service for an extraschedular rating. 38 C.F.R. §
3.321.
The determination of whether a claimant is entitled to an
extraschedular rating under 38 C.F.R. § 3.321(b) is a three-
step inquiry. The threshold factor for extraschedular
consideration is a finding that the evidence before VA
presents such an exceptional disability picture that the
available schedular rating for that service-connected
disability is inadequate. There must be a comparison between
the level of severity and symptomatology of the service-
connected disability with the established criteria found in
the Rating Schedule for the disability. If the criteria
reasonably describe the veteran's disability level and
symptomatology, then the veteran's disability picture is
contemplated by the rating schedule, and the assigned
schedular evaluation is, therefore, adequate, and no referral
is required. Thun v. Peake, 22 Vet. App. 111 (2008).
In this case, comparing the veteran's disability level and
symptomatology to the Rating Schedule, the degree of
disability is contemplated by the Rating Schedule and the
assigned schedular rating is, therefore, adequate, and no
referral for an extraschedular rating is required.
ORDER
An initial rating higher than 20 percent for
spondylolisthesis at L5-S1 is denied.
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs